Toronto IP lawyer Richard Owens has posted an analysis of last summer's national copyright consultation in which he concludes that "if the aim of the Consultation was to canvass public opinion and discern trends, it failed." Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective. In fact, the government itself clearly recognizes the exceptional participation last summer. Last week in the House of Commons, Conservative MP Cheryl Gallant noted:
The participation was unprecedented and we welcomed the comments of rights holders, users, intermediaries and everyday Canadians. We know that Canadians are concerned with copyright and its implications in our increasingly digital environment. This was demonstrated by the thousands of Canadians who took the time to participate in one way or another.
Owens arguments centre on the following four issues:
- The majority of the responses were form letters and those should be discounted.
- The majority of form letters were generated from a single website – CCER – that had the potential to "game" the system.
- Many of the submissions were not well-informed.
- The demographics of the consultation participants was not sufficiently representative of the Canadian public.
It is true that the majority of the 8,300 submissions were form letters. While a form letter requires less effort than a detailed original submission (though not much less than some of the two sentence Access Copyright inspired submissions that simply say creators deserve to be paid), they still represent a canvassing of the public and the desire of someone to ensure that their voice is heard on the issue. In fact, groups on both sides of the copyright debate offered form letters to their members or people they thought might be willing to participate. The recording industry had a form letter (only 8 people took the time to submit it), the publishing industry had a form letter (17 submitted it), and supporters of the private copying levy had a form letter (22 submitted it). Meanwhile, Access Copyright warned its members that "there is a danger your voices as Canadian creators and publishers will be drowned out by the chatter." It urged members to post their comments that creators deserve to paid. By far the most popular form letter came through the CCER site – by my count 5,025 submissions.
We could group all the form letters as their own category (the government essentially did that by giving each letter a single post followed by the names of the signatories). In that case, the "battle of forms" has a pretty clear outcome. Thousands took the time to express their concern with C-61-style reforms, while a surprisingly small number of people employed or working in the music and publishing industries did so. Contrary to Owens' contention, form letters provide a solid gauge of the public mood on an issue, particularly those with familiarity but not expertise.
Owens is also troubled by the fact that the single largest source of submissions came from a site operated by the Canadian Coalition of Electronic Rights, a group that represents modchip makers, as well as the involvement of the Torrent Freak site, which featured several posts on the consultation (including one of mine). The concern with Torrent Freak is certainly misplaced as it is widely used as a source of original reporting on digital issues. Indeed, Barry Sookman regularly references their articles in his Twitter postings (recent examples here and here).
As for CCER, Owens suggests that the site may have helped "game" the results by allowing anyone – including non-Canadians – to submit. Yet according to site operators, forms were only submitted by those who included a valid Canadian address. While it is certainly possible that a few people might submit using a fake Canadian address, it seems very unlikely that this would be a large number. In fact, there is little reason for non-Canadians to take an active interest in Canadian copyright reform and suggestions that they hope to benefit from the ongoing existence of Canadian-based torrent trackers ignores the reality that Europe is home to far more torrent tracker sites than Canada.
Lack of Expertise
Owens raises concerns about the lack of expertise of many of the submissions, arguing that many are "poorly informed." As examples, he points to submissions that express concern about lawsuits or U.S. pressure. While he might have pointed instead to submissions or articles claiming Canada is a piracy haven (such as this week's Canadian Business article), the claim that the broader public just does not understand copyright has been made before, chiefly by IP lawyers from large law firms. It formed the gist of Barry Sookman's critique of the Fair Copyright for Canada Facebook group and lies at the heart of claims that "endless consultation is useless."
It is true that there are varying degrees of legal expertise within the Canadian public. Yet surely someone should not require a law degree in order to participate in public policy. The responses from those only passively familiar with the specifics of copyright yet concerned enough to participate in the consultation, speaks volumes about the interest the issue has generated among Canadians. Not everyone may be an expert on the issue, but many know enough to know that they are troubled by the implications previous bills or the pressures for certain reforms.
With respect to the value of online activism, we will have to agree to disagree. Evgeny Morozov (who is a he, not a she) is a colleague of mine on the Open Society Institute Information Program Sub-Board and I respect his views. However, the Canadian experience – whether on copyright or protests against prorogation – is that the Internet can be a critically important tool in ensuring that more voices are heard in the policy or political process.
Owens final concern involves the lack of women and francophones participating in the consultation. The gender imbalance within the copyright reform issue has been considered in greater detail by Laura Murray and is a real issue. As for the lack of francophones, perhaps it reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer).
Regardless, there is no reason to suggest that these demographics somehow invalidate the voices of those who did participate. As Woody Allen says, "eighty percent of success is showing up." Thousands of Canadians did show up this past summer to speak out on copyright and attempts to paint that participation as an abuse of the system or invalid are not only disrespectful to the many people who actively and in good faith engaged in a government-sponsored policy process, they are simply wrong.